(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

The third case relied on by Cindy Jones is Ochoa v. Superior Court, supra, 39 Cal.3d 159. Ochoa is a bystander witness case. Plaintiffs were the surviving parents of Rudy Ochoa, who as an inmate in the Santa Clara County juvenile hall. His parents visited him and found him extremely ill. The mother spoke with authorities, expressing concern that her son was not receiving necessary treatment. His mother was at his bedside and made repeated requests that her son receive medical treatment, including requesting that she be allowed to take him to a private physician. She remained at her son’s bedside. The son died. The Supreme Court held that the mother could assert a cause of action for NIED as a bystander witness because she had personally witnessed the failure of the medical personnel at the juvenile hall to provide medical care to her son. The court further held that the father could not assert the claim because he had not witnessed the lack of care but had only been told of the situation by his wife.

To recover for NIED as a bystander witness, a plaintiff must be present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim. (Thing v. LaChusa, supra, 48 Cal.3d at pp. 667-668.) In Bird v. Saenz, supra, 28 Cal.4th at pp. 920-921, the Supreme Court reiterated the Thing requirement that the plaintiff be present at the scene of the injury-producing event at the time it occurs, and contemporaneously be aware that it was causing injury to the victim. In Bird, the plaintiffs were in the waiting room while their mother was negligently operated on, with the result the Bird plaintiffs had no sensory perception whatsoever of the [injury-producing event] at the time it occurred. (28 Cal.4th at p. 917.)

The Bird court observed that the contemporaneous awareness element requires a contemporaneous awareness that a close relative is being injured. (28 Cal.4th at p. 916.) The Supreme Court explained, a rule permitting bystanders to sue for NIED on account of unperceived medical errors hidden in a course of treatment cannot be reconciled with Thing’s requirement that the plaintiff be aware of the connection between the injury-producing event and the injury. (28 Cal.4th at p. 921.)

In this case, Cindy Jones is apparently attempting to recover damages for injuries to her family members, including her daughter. However, Cedars-Sinai had no connection with her family members or her daughter. There was no family member who was a patient of Cedars-Sinai. Cindy Jones did not have a contemporaneous awareness of any injury producing event. Cindy Jones cannot recover damages for NIED based on an injury suffered by a family member.

CONCLUSION.

There is no basis for Cindy Jones’s allegation in paragraph 12 in which she seeks damages for allegedly exposing her family, including her daughter to the allegedly contagious disease and for seeking her daughter hospitalized. The court should grant the motion to strike.